Ross v. Times Mirror, Inc.

• Decision Date: 07 July 1995
• Docket Number: No. 94-224,94-224
• Citation: 164 Vt. 13,665 A.2d 580
• Parties: , 68 Fair Empl.Prac.Cas. (BNA) 1756, 130 Lab.Cas. P 57,928, 11 IER Cases 197 Edward H. ROSS v. TIMES MIRROR, INC., Times Mirror Magazine, Inc. d/b/a Ski Magazine, and George Bauer.
• Court: Vermont Supreme Court

Page 580

665 A.2d 580

164 Vt. 13, 68 Fair Empl.Prac.Cas. (BNA) 1756,

130 Lab.Cas. P 57,928, 11 IER Cases 197

Edward H. ROSS v. TIMES MIRROR, INC., Times Mirror Magazine, Inc. d/b/a Ski Magazine, and George Bauer.

No. 94-224.

Supreme Court of Vermont.

July 7, 1995.

Edward H. Ross, pro se, Waterbury, plaintiff-appellant.

Robert B. Hemley and Lucy T. Brown of Gravel and Shea, Burlington, for defendants-appellees.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

Plaintiff appeals from an order of the Chittenden Superior Court granting defendants' summary judgment motion on plaintiff's claims of wrongful discharge, age discrimination, and tortious interference with an employment contract. We affirm.

Plaintiff was employed by defendant Times Mirror, Inc. (TMI) in 1980 as a sales representative for some of its magazines and worked out of the New York office. In 1984, plaintiff was promoted to New England sales manager of SKI magazine and transferred to Burlington, Vermont. Shortly after arriving in Vermont, difficulties arose between plaintiff and his new supervisor, advertising manager Ellen McVickar. McVickar complained to both plaintiff and her supervisor, defendant George Bauer, that plaintiff's communication with the New York office was inadequate. In June 1988, McVickar issued a written warning to plaintiff, which was placed in his personnel file. Later that same month, plaintiff received a letter from Bauer placing him on probation, explaining that if he did not improve his communication, he could be terminated. Plaintiff's correspondence improved and he was taken off probation in September 1988.

Although plaintiff received a laudable annual review in May 1989, the friction continued to plague plaintiff and McVickar's relationship. In June 1989, an important advertiser wrote a letter to Bauer which criticized McVickar and praised plaintiff. Convinced that plaintiff had enticed the advertiser to write the letter, McVickar recommended to Bauer that he terminate plaintiff. Bauer then scheduled an August meeting with him in New York. When plaintiff did not attend the meeting, Bauer terminated plaintiff by phone.

Plaintiff believed he was terminated without good cause and in retaliation for the embarrassing letter. He brought the present action advancing three wrongful discharge theories: (1) breach of an oral contract to employ him until his retirement, (2) promissory estoppel based on a promise of permanent employment and promises implicit in TMI's employee handbook and a progressive disciplinary policy and (3) breach of an implied covenant of good faith and fair dealing. Plaintiff also claimed that his termination constituted age discrimination, and he accused defendant Bauer of interference with his employment contract with TMI. Defendants denied the allegations, and after several months of discovery moved under V.R.C.P. 56 for summary judgment.

The court granted defendants' motion, concluding that permanent employment status, even if a correct characterization, did not rebut the presumption of at-will employment and that any promised employment until retirement was barred by the Statute of Frauds. It also concluded that a disclaimer in TMI's personnel handbook negated any effect defendant's disciplinary policy had on the at-will relationship. It rejected plaintiff's implied covenant of good faith and fair dealing claim for lack of adequate factual support on the element of bad faith. Finally, the court concluded that plaintiff had not raised a genuine issue of fact with respect to either age discrimination or contract interference.

In reviewing a grant of summary judgment, we apply the same standard as the trial court, namely, that the motion should be granted when, taking all allegations made by the nonmoving party as true, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Pierce v. Riggs, 149 Vt. 136, 139, 540 A.2d 655, 657 (1987). Where the moving party does not bear the burden of persuasion at trial, it may satisfy its burden of production by showing the court that there is an absence of evidence in the record to support the nonmoving party's case. State v. G.S. Blodgett Co., 163 Vt. 175, ----, 656 A.2d 984, 988 (1995). The burden then shifts to the nonmoving party to persuade the court that there is a triable issue of fact. Id. In the present action, plaintiff has not met his burden on any of his claims.

Plaintiff argues that an oral contract for permanent employment was made when he was hired by TMI. Thus, it was his understanding that his employment would be continuous until plaintiff's retirement, and terminable only for just and sufficient cause. Alternatively, plaintiff argues that he detrimentally relied on TMI's oral representations that his employment would be continuous until he reached retirement.

In Benoir v. Ethan Allen, Inc., 147 Vt. 268, 270, 514 A.2d 716, 717-18 (1986), we stated that "the term 'permanent,' when used in an employment contract with reference to a term of employment, normally means nothing more than indefinite employment." An employer must do something more than promise continuous employment to take an employee out of an at-will status. " '[A]n employment contract for an indefinite term is an "at-will" agreement, terminable at any time, for any reason or for none at all.' " Larose v. Agway, Inc., 147 Vt. 1, 3, 508 A.2d 1364, 1365-66 (1986) (quoting Sherman v. Rutland Hospital, Inc., 146 Vt. 204, 207, 500 A.2d 230, 232 (1985)). In addition, there is no support in the record for plaintiff's allegations that any oral representations for continuous employment were made to plaintiff at the time of hiring or later. See V.R.C.P. 56(e) (nonmoving party may not rest on unsupported allegations). Plaintiff's deposition reveals that only salary and sales territory were discussed at his hiring meeting. Moreover, he presented no evidence of detrimental reliance. Plaintiff's contract and promissory estoppel claims fail.

Plaintiff next claims that certain established employment policies limited TMI's discretion to terminate him. Specifically, plaintiff contends that TMI's personnel handbook, which contained a list of conduct warranting discipline, created an enforceable promise to terminate only for cause. Plaintiff also maintains that defendant had instituted a progressive three-step disciplinary procedure, upon which TMI employees relied. In plaintiff's view, these policies sufficiently rebut the at-will presumption. The trial court concluded that the disclaimer in TMI's handbook effectively trumped any claim that the at-will relationship had been unilaterally modified by either the handbook or disciplinary policy. Plaintiff initially presented this claim to the trial court under the rubric of promissory estoppel. The trial court addressed it as a unilateral contract modification claim. On appeal, plaintiff challenges only the trial court's contract modification analysis. While summary judgment was appropriate, we disagree with the trial court's reasoning. See Gochey v. Bombardier, Inc., 153 Vt. 607, 613-14, 572 A.2d 921, 925 (1990) (Supreme Court is not bound by reasoning of trial court).

The effectiveness of a disclaimer depends on the circumstances. See, e.g., McGinnis v. Honeywell, Inc., 110 N.M. 1, 791 P.2d 452, 457 (1990) (disclaimer rebutted by evidence to contrary of parties' norms of conduct and expectations). Notably, in Benoir, 147 Vt. at 271, 514 A.2d at 718, we concluded that a written disciplinary procedure used whenever a possible discharge arose altered the at-will relationship, despite the fact that the employer had expressly reserved the right to bypass the disciplinary process. See also Foote v. Simmonds Precision Prods. Co., 158 Vt. 566, 568-72, 613 A.2d 1277, 1278-80 (1992) (defendant's handbook stating that employment relationship could be terminated at any time did not defeat plaintiff's claim of retaliatory discharge where employer promised not to retaliate for use of grievance procedure). Without such a principle, an employer could have it both ways--enjoying the morale-enhancing benefits of fair procedures most of the time, but relying on a handbook disclaimer whenever it chose to jettison its procedures in a particular case. See Leikvold v. Valley View Community Hosp., 141 Ariz. 544, 688 P.2d 170 174 (1984) (employer cannot selectively abide by or treat as illusory officially announced employment policies). Because the disclaimer is not dispositive, we must determine if plaintiff raised a genuine issue of material fact as to whether defendant's handbook or disciplinary procedure unilaterally modified plaintiff's at-will employment agreement.

We have stated on numerous occasions that the presumption of an at-will employment contract is a rule of contract construction that can be overcome by evidence to the contrary. See, e.g., Taylor v. National Life Ins. Co., 161 Vt. 457, 462, 652 A.2d 466, 470 (1993). An employer may limit its discretion to terminate an employee at will by instituting company-wide personnel policies. See Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081, 1088 (1984). To determine whether a particular policy modifies the at-will relationship or creates an enforceable promise of specific treatment, we are guided by our recent decision in Taylor, in which we held that provisions of a personnel policy manual may unilaterally alter the at-will relationship. 161 Vt. at 464, 652 A.2d at 471. Relying on Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880, 892 (1980), we reasoned that:

[W]here an employer chooses to establish [personnel] policies and practices and makes them known to its employees, the employment relationship is presumably enhanced.... It is enough that the employer chooses, presumably in its own interest, to create an environment in which the employee believes that, whatever...